Amicus Curiae Brief — Louisiana, Appellant v. Phillip Callais, et al.

Nos. 24-109, 24-110

Supreme Court of the United States

──────────────────────────

STATE OF LOUISIANA, Appellant,

v.

PHILLIP CALLAIS, ET AL., Appellees.

─────────────

PRESS ROBINSON, ET AL., Appellants,

v.

PHILLIP CALLAIS, ET AL., Appellees.

──────────────────────────

On Appeal from the United States District Court

for the Western District of Louisiana

──────────────────────────

BRIEF OF ALABAMA AND 15 OTHER STATES

AS AMICI CURIAE IN SUPPORT OF APPELLEES

──────────────────────────

September 24, 2025

Steve Marshall

Attorney General

Edmund G. LaCour Jr.

Solicitor General

Counsel of Record

Robert M. Overing

Deputy Solicitor General

Dylan Mauldin

George Muirhead

Assistant Solicitors General

STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

501 Washington Ave.

Montgomery, AL 36130

(334) 242-7300

Edmund.LaCour@AlabamaAG.gov

Counsel for Amicus Curiae State of Alabama

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTERESTS OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT................................................................ 6

I. The means and ends of race-based

redistricting under §2 have proven too

amorphous for meaningful judicial review. ..... 6

A. The map-comparison test for dilutive

effects has proven standardless. ................. 9

1. Distinguishing race predominance from race consciousness is hopeless. ..................................... 9

2. The communities-of-interest

factor is too malleable to

constrain the use of race. ..................... 15

B. There is no objective standard for

racially polarized voting, and its existence does not prove discrimination. ......... 17

C. The “totality of circumstances”

inquiry has proven standardless. ............. 19

II. Race-based redistricting has no end point..... 25

III.Race-based redistricting relies on stereotypes and penalizes voters based on race. ..... 29

IV.The Fifteenth Amendment does not save

race-based

redistricting

under

§2’s

indeterminate dilution test. ........................... 32

CONCLUSION .......................................................... 34

ADDITIONAL COUNSEL ........................................ 35

ii

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) .......................................... 1, 10

Abrams v. Johnson,

521 U.S. 74 (1997) ................................................ 24

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) .............................. 7, 31, 33, 34

Ala. Leg. Black Caucus v. Alabama, (ALBC)

989 F.Supp.2d 1227 (M.D. Ala. 2013) ............. 7, 22

Ala. NAACP v. Alabama,

612 F.Supp.3d 1232 (M.D. Ala. 2020) ................. 19

Ala. NAACP v. Allen,

No. 2:21-cv-1531, 2025 WL 2451166

(N.D. Ala. Aug. 22, 2025) ................................. 8, 29

Ala. Leg. Black Caucus v. Alabama, (ALBC)

231 F.Supp.3d 1026 (M.D. Ala. 2017) ............. 7, 13

Ala. Leg. Black Caucus v. Alabama, (ALBC)

575 U.S. 254 (2015) .............................................. 29

Alexander v. S.C. NAACP,

602 U.S. 1 (2024) .............................................. 2, 26

Allen v. Milligan,

599 U.S. 1 (2023) ............................... 2, 3, 9, 11, 12,

....................................................... 14, 20-22, 28, 34

Alpha Phi Alpha Fraternity v. Raffensperger,

700 F.Supp.3d 1136 (N.D. Ga. 2023) ....8, 15, 22-24

Ames v. Ohio Dep’t Youth Servs.,

145 S.Ct. 1540 (2025) ........................................... 32

Anne Harding v. Cnty. of Dallas,

948 F.3d 302 (5th Cir. 2020) ................................ 22

iii

Banerian v. Benson,

589 F.Supp.3d 735 (W.D. Mich. 2022)..... 11, 15, 17

Barlett v. Strickland,

556 U.S. 1 (2009) ............................................ 18, 25

Bd. of Ed. of Oklahoma City Pub. Sch. v. Dowell,

498 U.S. 237 (1991) .............................................. 26

Bendix Autolite Corp. v. Midwesco Enters.,

486 U.S. 888 (1988) .............................................. 12

Bethune-Hill v. Va. State Bd. of Elections,

580 U.S. 178 (2017) .............................................. 10

Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647, 671 (2021) ................................ 22, 23

Burton v. Hobbie,

543 F.Supp. 235 (M.D. Ala. 1982) ....................... 30

Bush v. Vera,

517 U.S. 952 (1996) .......................................... 1, 11

Callais v. Landry,

732 F.Supp.3d 574 (W.D. La. 2024) ...................... 2

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .............................................. 26

Clark v. Calhoun Cnty.,

21 F.3d 92 (5th Cir. 1994) .................................... 21

Cooper v. Harris,

581 U.S. 285 (2017) ........................................ 18, 21

Elizondo v. SBISD,

No. 21-cv-1997, 2025 WL 1222270

(S.D. Tex. 2025) .............................................. 19, 23

Freeman v. Pitts,

503 U.S. 467 (1992) .......................................... 5, 26

Gaffney v. Cummings,

412 U.S. 735 (1973) .............................................. 28

iv

Gill v. Whitford,

585 U.S. 48 (2018) ................................................ 29

Gonzalez v. Aurora,

535 F.3d 594 (7th Cir. 2008) ................................ 11

Grutter v. Bollinger,

539 U.S. 306 (2003) .............................................. 25

Holder v. Hall,

512 U.S. 874 (1994) .............................................. 25

J.E.B. v. Alabama,

511 U.S. 127 (1994) .............................................. 30

Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ.,

4 F.3d 1103 (3d Cir. 1993) ................................... 21

Johnson v. De Grandy,

512 U.S. 997 (1994) .......................................... 9, 21

Kelley v. Bennett,

96 F.Supp.2d 1301 (M.D. Ala. 2000) ................... 29

LULAC v. Clements,

999 F.2d 831 (5th Cir. 1993) ............................ 4, 23

LULAC v. Perry,

548 U.S. 399 (2006) .......... 1, 3, 5, 12, 15, 21, 28, 29

Merrill v. Milligan,

142 S.Ct. 879 (2022) ........................................... 3, 4

Miller v. Johnson,

515 U.S. 900 (1995) .......................... 5, 9, 10, 31, 33

Miss. NAACP v. State Bd. of Election Comm’rs,

739 F.Supp.3d 383 (S.D. Miss. 2024) ........8, 11-13,

.................................................................. 16, 17, 30

Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982) .............................................. 33

v

Mo. NAACP v. Ferguson-Florissant Sch. Dist.,

894 F.3d 924 (8th Cir. 2018) ................................ 22

NAACP v. City of Niagara Falls,

65 F.3d 1002 (2d Cir. 1995) ................................. 21

Nairne v. Ardoin,

715 F.Supp.3d 808 (M.D. La. 2024)..................... 24

Nairne v. Landry,

No. 24-30115, 2025 WL 2355524

(5th Cir. Aug. 14, 2025) ......................................... 8

Nw. Austin Mun. Utility Dist. No. One v. Holder,

557 U.S. 193 (2009) .......................................... 3, 27

Oregon v. Mitchell,

400 U.S. 112 (1970) .............................................. 33

Palmer v. Hobbs,

2024 WL 1138939

(W.D. Wash. Mar. 14, 2024) ................................ 18

Palmore v. Sidoti,

466 U.S. 429, 432 (1984) ........................................ 5

Parents Involved v. Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) .............................................. 31

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) .......................................... 9, 10

Powers v. Ohio,

499 U.S. 400 (1991) .............................................. 30

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) .............................................. 28

Ricci v. DeStefano,

557 U.S. 557 (2009) ........................................ 20, 33

Rizzo v. Goode,

423 U.S. 362 (1976) .............................................. 20

vi

Robinson v. Ardoin,

605 F.Supp.3d 759 (M.D. La. 2022)............ 1, 8, 11,

...................................................... 12, 13, 15, 20, 30

Rucho v. Common Cause,

588 U.S. 684 (2019) .......................... 5, 8, 11, 14, 26

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) .............................. 21

Schuette v. BAMN,

572 U.S. 291 (2014) .............................................. 28

SFFA v. Harvard,

600 U.S. 181 (2023) ............... 1, 2, 4-7, 9, 10, 12, 13

...................................... 15, 17, 18, 23, 25-28, 30-34

Shaw v. Reno,

509 U.S. 630 (1993) .................. 9, 15, 26, 27, 29, 31

Shelby County v. Holder,

570 U.S. 529 (2013) .......................................... 1, 22

Singleton v. Allen,

690 F.Supp.3d 1226 (N.D. Ala. Sept. 5, 2023) .... 30

Singleton v. Allen,

782 F.Supp.3d 1092 (N.D. Ala. May 8, 2025),

appeal pending, No. 25-274 (U.S) ................... 2, 11,

........................................... 14, 17-19, 22, 27, 28, 32

Singleton v. Merrill,

582 F.Supp.3d 924 (N.D. Ala. 2022) .... 1, 12, 13, 32

Soto Palmer v. Hobbs,

686 F.Supp.3d 1213 (W.D. Wash. 2023)............. 18,

.................................................................. 19, 20, 23

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ........................... 1, 3, 20, 32-34

Swann v. Charlotte-Mecklenburg Bd. of Ed.,

402 U.S. 1 (1971) .................................................. 26

vii

Thornburg v. Gingles,

478 U.S. 30 (1986) ......................................3, 5-7, 9,

....................................................... 12, 15-22, 25, 31

Turtle Mountain Band of Chippewa Indians v. Howe,

No. 3:22-cv-22, 2023 WL 8004576

(D.N.D. Nov. 17, 2023) ................................... 18, 20

United States v. Dallas Cnty. Comm’n,

850 F.2d 1433 (11th Cir. 1988) ............................ 25

Uno v. City of Holyoke,

72 F.3d 973 (1st Cir. 1995) .................................. 21

Vieth v. Jubelirer,

541 U.S. 267 (2004) .......................................... 8, 13

Wesch v. Hunt,

785 F.Supp. 1491 (S.D. Ala. 1992) ...................... 30

Wisc. Legislature v. Wisc. Elections Comm’n,

595 U.S. 398 (2022) .............................................. 21

Wright v. Sumter Cnty. Bd. of Elections &

Registration,

979 F.3d 1282 (11th Cir. 2020) ............................ 21

Constitutional Provisions

U.S. Const. amend XIII ............................................. 33

U.S. Const. amend XIV ............................................. 32

U.S. Const. amend XV ................................... 32, 33, 34

Statutes

52 U.S.C. §10301(b) ................................................... 23

Voting Rights Act ....................... 1-8, 12, 17-21, 24-34

viii

Other Authorities

C. Elmendorf et. al., Racially Polarized Voting,

83 U. Chi. L. Rev. 587 (2016)................................. 7

C.

Gay, The Effect of Black Congressional

Representation on Political Participation,

95 Am. Pol. Sci. Rev. 589 (2001) .......................... 27

Docket Entry 425-1 (Expert Report of Sean P. Trende)

Milligan v. Allen,

No. 2:21-cv-1530 (N.D. Ala.) ................................ 14

E. Katz, et al., Documenting Discrimination in Voting:

Judicial Findings Under Section 2 of the Voting

Rights Act Since 1982,

39 U. Mich. J. L. Reform 643 (2006) ................... 21

H. Gerken, Understanding the Right to an Undiluted

Vote, 114 Harv. L. Rev. 1663 (2001) ...................... 7

L.

Drutman, Elections, Political Parties, and

Multiracial, Multiethnic Democracy: How the

United States Gets It Wrong,

96 N.Y.U. L. Rev. 985 (2021) ............................... 27

L. Guinier, [E]racing Democracy: The Voting Rights

Cases,

108 Harv. L. Rev. 109 (1994) ................................. 6

N. Stephanopoulos, Race, Place, and Power,

68 Stan. L. Rev. 1323 (2016).................................. 7

S. Issacharoff, Polarized Voting and the Political

Process: The Transformation of Voting Rights

Jurisprudence,

90 Mich. L. Rev. 1833 (1992) ........................... 7, 25

ix

The Alabama Channel, Alabama Joint Permanent

Legislative Committee on Reapportionment

(July 17, 2023), www.youtube.com/watch?v

=AGM4k9nRgXk&t=5997s (1:40:00)................... 29

INTERESTS OF AMICI CURIAE

Amici States agree that “race-based state action”

is forbidden “except in the most extraordinary case.”

SFFA v. Harvard, 600 U.S. 181, 208 (2023). In 1965,

the country faced an “extraordinary problem,” Shelby

County v. Holder, 570 U.S. 529, 534 (2013), and a

“pervasive evil” in discriminatory voting practices,

South Carolina v. Katzenbach, 383 U.S. 301, 309

(1966). “The purpose of the Voting Rights Act” was to

combat that evil and “foster our transformation to a

society that is no longer fixated on race.” LULAC v.

Perry, 548 U.S. 399, 433-34 (2006).

Thanks in part to the VRA, 2025 is not 1965. But

they share this in common: voting districts can still be

“divided along obvious racial lines without

consequence,” cf. Robinson.Br.35, so long as federal

courts are drawing the lines. Courts today order

affirmative action in redistricting without “evidence of

Black voters being denied the right to vote,” Robinson

v. Ardoin, 605 F.Supp.3d 759, 847 (M.D. La. 2022),

and despite “racial parity in rates of voter registration

and turnout,” Singleton v. Merrill, 582 F.Supp.3d 924,

1022 (N.D. Ala. 2022).

Worse still, many States can’t know with any

certainty whether they must engage in or refrain from

race-based districting. They have faced “competing

hazards of liability” for decades, Bush v. Vera, 517

U.S. 952, 977 (1996) (plurality), and the path through

hasn’t gotten any clearer. However States traverse

the “legal obstacle course,” Abbott v. Perez, 585 U.S.

579, 587 (2018), they seem destined to lose. Consider

the post-2020 travails of Louisiana and Alabama.

2

Louisiana’s congressional plan was preliminarily

enjoined, so the State enacted a race-based map with

a new majority-black district “stretch[ing] some 250

miles” from Shreveport to Baton Rouge. Callais v.

Landry, 732 F.Supp.3d 574, 588 (W.D. La. 2024). That

second attempt was declared unconstitutional and

enjoined. Id. at 582.

Alabama’s congressional plan was preliminarily

enjoined too, so the State enacted a new map

prioritizing non-racial goals. This second attempt was

enjoined for not creating a new majority-black district

stretching some 250 miles from Mobile to the Georgia

border. Singleton v. Allen, 782 F.Supp.3d 1092 (N.D.

Ala. May 8, 2025), appeal pending, No. 25-274 (U.S).

The State was even branded intentionally racist for

trying to avoid an unconstitutional use of race.

It’s time that this “lose-lose situation” ends.

Alexander v. S.C. NAACP, 602 U.S. 1, 65 (2024)

(Thomas, J., concurring). No one disputes that “[t]he

VRA is the crown jewel of civil rights legislation,” but

its “brilliance” can be seen without viewing “dilution”

litigation through rose-colored glasses. Robinson.Br.1.

There is no “clarity and exactness” in deciding when a

map dilutes. Id. There is no “careful crafting” in §2

that “limit[s]” the use of race “to tailored remedies for

ongoing race discrimination.” Id. at 47. Perhaps in

decades past, the Court could assume that §2 was

“remediating specific, identified instances of past

discrimination” in redistricting. SFFA, 600 U.S. at

207. No longer. This unconstrained, opaque, and

odious use of race “cannot extend” any further. Allen

v. Milligan, 599 U.S. 1, 45 (2023) (Kavanaugh, J.,

concurring).

3

SUMMARY OF ARGUMENT

The Voting Rights Act ended literacy tests, poll

taxes, character requirements, and the like. It

authorized federal observers and barred intimidation.

It threatened violators with civil and criminal

sanctions. Katzenbach, 383 U.S. at 315-16. And it

worked. We no longer see litigation over literacy tests

and poll taxes, “[v]oter turnout and registration rates

now approach parity,” and “minority candidates hold

office at unprecedented levels.” Nw. Austin Mun.

Utility Dist. No. One v. Holder, 557 U.S. 193, 202

(2009). “In part due to the success of that legislation,

we are now a very different Nation.” Id. at 212. Yet

courts continue to wield an extraordinary power that

imposes serious harms on individual dignity and state

sovereignty: §2-authorized race-based districting.

The question here is not whether Congress could

ever “authorize race-based redistricting as a remedy.”

Allen, 599 U.S. at 41. Nor is it whether this Court has

correctly interpreted §2. It is settled that there is “no

precise rule … governing § 2 compactness,” LULAC,

548 U.S. at 433, and “no simple doctrinal test for the

existence of legally significant racial bloc voting,”

Thornburg v. Gingles, 478 U.S. 30, 58 (1986).

Likewise, “[n]othing in § 2 provides an answer,”

“rule[,] or standard for determining which of” the

“difficult, contestable choices” made by mapdrawers

“are better than others.” Cf. Allen, 599 U.S. at 35.

The question here is whether this “notoriously

unclear and confusing” test can continue to authorize

race-based districting. Merrill v. Milligan, 142 S.Ct.

879, 881 (2022) (Kavanaugh, J., concurring). The

Court has never considered that argument. Allen, 599

U.S. at 45 (Kavanaugh, J., concurring). “But this

4

Court’s precedents make clear that the answer is no.”

SFFA, 600 U.S. at 316 (Kavanaugh, J., concurring).

After forty years, there is still no “dilution” test that

is “sufficiently coherent for purposes of strict scrutiny”

to ensure that race-based districting has “a logical end

point.” Id. at 214, 221 (quotations omitted).

While States may have a compelling interest in

“remediating specific, identified instances of past

discrimination,” Robinson.Br.2, that does not describe

“dilution” litigation. Plaintiffs owe their successes to

“uncertainty” about the very “nature and contours of

a vote dilution claim,” Merrill, 142 S.Ct. at 883

(Roberts, C.J., dissenting), not to the existence of

“actual

racial

discrimination”

in

voting,

Robinson.Br.15.

Tellingly, the Robinson Appellants ignore this

uncertainty. They extol a dilution test that is

“appropriately constrained,” “brillian[t]” in its “clarity

and exactness,” and “tailored” to remedy “specific”

discrimination. Robinson.Br.1, 14, 47. That test is

imagined.

The very concept of vote “dilution” rests on an

“amorphous concept of injury.” SFFA, 600 U.S. at 226.

Perhaps dilution was easier to identify in 1982, but

the VRA’s successes in “cutting away … obstacles to

full participation,” have made “clear lines of legality

and morality … more difficult to locate.” LULAC v.

Clements, 999 F.2d 831, 837 (5th Cir. 1993) (en banc).

Every step of the test is plagued by vague and

manipulable factors that can be stretched to find

liability despite significant progress. What remains

today are claims by racial groups “for a fair share of

political power and influence, with all the

justiciability conundrums that entails.” Rucho v.

5

Common Cause, 588 U.S. 684, 709 (2019). No specific

discrimination is identified, and what is identified is

never remedied.

Nothing in this test makes it likely its racial

demands will “expire any time soon.” SFFA, 600 U.S.

at 225. Its mission to combat the “vestigial effects” of

discrimination, Gingles, 478 U.S. at 69, has no end in

sight, see SFFA, 600 U.S. at 370 (Sotomayor, J.,

dissenting). Even where drastic steps were needed to

eradicate school desegregation “root and branch,” the

Court would not accept “vestiges” as a basis for the

indefinite use of race. Freeman v. Pitts, 503 U.S. 467,

486, 491-92 (1992).

Worse, race-based districting involves “the

offensive and demeaning assumption that voters of a

particular race, because of their race, ‘think alike,

share the same political interests, and will prefer the

same candidates at the polls.’” Miller v. Johnson, 515

U.S. 900, 911-12 (1995). Acting on that assumption is

forbidden, especially when it harms “other innocent

persons” based on their race. SFFA, 600 U.S. at 212.

One can celebrate the achievements of the VRA

without condoning §2’s unconstrained and indefinite

demands of racial preferences in redistricting. Indeed,

one must, for this use of race strikes at the very

“purpose” of the VRA to “prevent discrimination in the

exercise of the electoral franchise,” LULAC, 548 U.S.

at 433-34, and at the “core purpose” of the Equal

Protection Clause to end “all” official discrimination,

Palmore v. Sidoti, 466 U.S. 429, 432 (1984).

“Eliminating racial discrimination means eliminating

all of it.” SFFA, 600 U.S. at 206. That is the only way

to become “a society that is no longer fixated on race.”

LULAC, 548 U.S. at 434.

6

ARGUMENT

I.

The means and ends of race-based

redistricting under §2 have proven too

amorphous for meaningful judicial review.

The Court allowed race-based admissions

programs on the assumption that universities could

run them “in a manner that is sufficiently measurable

to permit judicial review.” SFFA, 600 U.S. at 214

(quotations omitted). Time and experience showed it

could not be done. Universities lacked “sufficiently

coherent” interests in their use of race and could not

“articulate a meaningful connection between the

means they employ[ed] and the goals they pursue[d].”

Id. at 214, 215.

Section 2’s goal of ending “dilution” in districting

is every bit as “amorphous” as the hazy goals proffered

in SFFA. Id. at 214. At oral argument in this case, the

Court twice asked the Robinson Appellants a simple

question: explain “exactly what the violation was” in

Louisiana’s 2022 plan. Oral.Arg.Tr.46; see id. at 30.

The answer was not a description of “actual racial

discrimination” by the State of Louisiana.

Robinson.Br.15. It was a mix of buzzwords ranging

from the “elusive” to the “imponderable.” SFFA, 600

U.S. at 215.

That is hardly the fault of the advocates:

as applied to redistricting, §2 has always been “a

statute in search of a theory.”1 Before Gingles, there

was no “overriding conception of the precise

constitutional harm” or even “[w]hat was meant by

1 L. Guinier, [E]racing Democracy: The Voting Rights Cases,

108 Harv. L. Rev. 109, 113 (1994).

7

‘minority vote dilution.’”2 Gingles purported to define

the “essence of a §2 claim,” 478 U.S. at 47, but decades

later, there remains “no generally accepted theory of

racial vote dilution.”3 If no one can articulate the very

“concept of injury,” then this area of law is not safe

enough for courts to wield the “dangerous” tool of

racial sorting. SFFA, 600 U.S. at 209, 212; see also

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236

(1995) (“reasons” for using race must be “clearly

identified and unquestionably legitimate”).

The results speak for themselves. If the test has

such “clarity and exactness in filtering out all but the

most meritorious claims,” Robinson.Br.1, then how

can materially identical maps survive §2 in one cycle

and succumb to it the next? For example, Alabama’s

2012 Senate plan had eight majority-black districts

and was challenged for not having more. The district

court rejected the §2 claim, noting that “black voters

in Alabama are highly politically active” and “have

successfully elected the candidates of their choice in

the majority-black districts.” ALBC v. Alabama, 989

F.Supp.2d 1227, 1287 (M.D. Ala. 2013) (W. Pryor, J.).4

But Alabama’s 2021 Senate plan, also with eight

majority-black districts, was deemed dilutive because

2 S. Issacharoff, Polarized Voting and the Political Process:

The Transformation of Voting Rights Jurisprudence, 90 Mich. L.

Rev. 1833, 1844 (1992); see N. Stephanopoulos, Race, Place, and

Power, 68 Stan. L. Rev. 1323, 1333 (2016) (describing the

“conventional [if “overstated”] wisdom” that the doctrine “was

formless mush before Gingles”).

3 C. Elmendorf et. al., Racially Polarized Voting, 83 U. Chi.

L. Rev. 587, 590 (2016); H. Gerken, Understanding the Right to

an Undiluted Vote, 114 Harv. L. Rev. 1663, 1666 (2001) (no “fully

developed theory for describing and understanding” dilution).

4 See ALBC v. Alabama, 231 F.Supp.3d 1026, 1033 (M.D. Ala.

2017) (readopting conclusion on remand).

8

the district court “refuse[d] to give punitive effect to

the political participation of Black Alabamians” and

because the candidates favored by most black voters

had rarely won outside of “majority-Black districts.”

Ala. NAACP v. Allen, No. 2:21-cv-1531, 2025 WL

2451166, at *74, *78 (N.D. Ala. Aug. 22, 2025). The

story is the same in case after case this cycle. Maps

have fallen, despite having the same number of

majority-minority districts as their predecessors.5

Retrogression cannot explain these divergent results.

Contra D.C.Br.28.

As with partisan gerrymandering, some hold out

hope “that in another case a standard might emerge.”

Rucho, 588 U.S. at 702 (quoting Vieth v. Jubelirer, 541

U.S. 267, 312 (2004) (Kennedy, J., concurring)); see

Stephanopoulos.Br.29. Experience—not “the mere

passage of time,” D.C.Br.5—has dashed that hope.

Thus, the Robinson Appellants and their amici can

say (ad nauseum) that §2’s use of race is “constrained”

and “exacting.” But they cannot prove it. Not a single

5 Robinson, 605 F.Supp.3d at 766, 775 (enjoining elections

under Louisiana’s 2022 congressional plan though the plan stuck

to “the status quo of one majority-minority district”); Nairne v.

Landry, No. 24-30115, 2025 WL 2355524, at *23 (5th Cir. Aug.

14, 2025) (affirming §2 liability for Louisiana’s 2022 House and

Senate plans though they have “more majority-Black districts

than in 2011”); Miss. NAACP v. State Bd. of Election Comm’rs,

739 F.Supp.3d 383, 400, 403 (S.D. Miss. 2024) (holding that

Mississippi’s 2022 House and Senate plans violate §2 despite

both “retain[ing] the same number of black-majority districts

used for the last state legislative elections prior to the 2020

Census”); Alpha Phi Alpha Fraternity v. Raffensperger,

700 F.Supp.3d 1136, 1181 (N.D. Ga. 2023) (holding that Georgia

violated §2 though “the number of majority-Black congressional

and legislative districts remained the same”).

9

step in the Gingles framework has proven “sufficiently

coherent.” SFFA, 600 U.S. at 214.

A. The map-comparison test for dilutive

effects has proven standardless.

The first step in a vote-dilution claim requires

plaintiffs to produce a reasonably configured

alternative map. There are supposed to be two major

hurdles. First, a plaintiff’s map must comply with a

State’s “traditional redistricting principles.” Allen,

599 U.S. at 30. Only then could “[d]eviation” from that

map show “that the State’s map has a disparate effect

on account of race.” Id. at 26. Second, race cannot

predominate in a plaintiff’s map because a map

“motivated by … simple racial politics” is not one the

State could constitutionally adopt. Shaw v. Reno, 509

U.S. 630, 643 (1993). This “map-comparison test” may

sound plausible, but it is “flawed in its fundamentals,”

cf. Allen, 599 U.S. at 35, and broken in practice.

1. Distinguishing race predominance from

race consciousness is hopeless.

Section 2 demands a “quintessentially raceconscious calculus.” Johnson v. De Grandy, 512 U.S.

997, 1020 (1994). In any other context, the Court

would treat this explicit use of race as “inherently

suspect,” Miller, 515 U.S. at 915; and “presumptively

invalid,” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256,

272 (1979). But race-based districting has long skirted

scrutiny on the belief that plaintiffs, States, and

courts can use race without letting it “predominate.”

Allen, 599 U.S. at 31 (plurality).

That belief has proven mistaken. The line between

benign and odious uses of race in districting is not just

“difficult to discern,” id., but far too “imprecise” and

“opaque” for anyone “to understand how courts are

10

supposed to scrutinize” illustrative maps, SFFA, 600

U.S. at 216-17; accord Crum.Br.18 (“[O]ver four

redistricting cycles, the predominant factor test has

also proved unworkable.”).

When the Court first used the term predominates

in redistricting, it drew on the constitutional standard

in employment discrimination: Race predominates

when an action is taken “at least in part ‘because of’”

its racial effects. Miller, 515 U.S. at 916 (quoting

Feeney, 442 U.S. at 279). Every dilution remedy would

flunk that test, so the doctrine became more malleable

to permit “the consideration of race in a way that

would not otherwise be allowed.” Abbott, 585 U.S. at

587. But the Court clarified in Bethune-Hill that a

map satisfying “traditional redistricting criteria” is

still race-predominant if race was the “overriding

reason” it was chosen “over others” or “the criterion”

that “could not be compromised,” like when “raceneutral considerations ‘c[o]me into play only after the

race-based decision had been made.’” Bethune-Hill v.

Va. State Bd. of Elections 580 U.S. 178, 189-90 (2017).

In theory, defendants could prove predominance

with “evidence that some district lines deviated from

traditional principles.” Id. at 190. In practice, it is

impossible to overcome a court’s “intuitions” and

“subjective views that demonstrative districts are

good enough.” See Stephanopoulos.Br.30-31. After all,

“[t]raditional redistricting principles … are numerous

and malleable,” and many “are surprisingly ethereal

and admit of degrees.” Bethune-Hill, 580 U.S. at 190

(cleaned up). “By deploying those factors in various

combinations and permutations,” plaintiffs can craft

“a plethora of potential maps that look consistent with

traditional, race-neutral principles.” Id.

11

And “modern computer technology” makes the

task easier than ever, as “mapmakers can now

generate millions of possible districting maps for a

given State.” Allen, 599 U.S. at 23. Plaintiffs today can

“find innovative combinations of geography that even

the most expert human mapmakers may overlook”

when contriving new “reasonably compact” districts.

Br. of Amici Computational Redistricting Experts 14,

No. 21-1086, Allen (July 18, 2022).

Even for more objective criteria like compactness,

courts are poorly suited to say how compact is enough

in the abstract. It is “an imprecise concept.” Miss.

NAACP, 739 F.Supp.3d at 414. And of the “dozens of

competing metrics” for compactness, which one

“should be used?” Allen, 599 U.S. at 35; but see

Robinson, 605 F.Supp.3d at 823 (deeming one metric

“the best”). The same goes for county lines—how many

can be split? And for communities of interest—which

ones should be respected? And so on. There is “no legal

answer” to the “question of ‘how much deviation from

each [criterion] to allow.’” Banerian v. Benson, 589

F.Supp.3d 735, 738 (W.D. Mich. 2022) (Kethledge, J.)

(quoting Rucho, 588 U.S. at 708)); see Gonzalez v.

Aurora, 535 F.3d 594, 598 (7th Cir. 2008)

(Easterbrook, C.J.).

It is thus all too easy for courts to find that plaintiff

plans still “reasonably” respect the State’s criteria.

Vera, 517 U.S. at 977. The State’s map can “excel[] at

whatever traditional districting principle the

Legislature deems most pertinent,” and it makes no

difference. Singleton, 782 F.Supp.3d at 1264. States

are then forced to adopt race-based snake districts to

salvage

some

of

their

traditional

goals.

Oral.Arg.Tr.37-38 (the Court). See also App.182a

12

(describing

“‘bizarre’

250-mile-long”

district);

Oral.Arg.Tr.41 (conceding “squiggly snake” shape).6

The problem cannot be solved by more rigorous

application of Gingles. “[N]o precise rule has emerged

governing § 2 compactness,” LULAC, 548 U.S. at 433,

because no such rule exists for a test that poses

“inescapably imponderable” questions, SFFA, 600

U.S. at 215. Even if Gingles were a proper beauty

contest, courts would face the puzzle of weighing a

plaintiff map’s poor performance on one criterion (e.g.,

having no snake districts) against its better

performance on another (e.g., respecting a snakeshaped community of interest) with no neutral

principle to guide the way. Deciding how many split

counties equals a tenth of a Polsby-Popper score is

much like deciding “whether a particular line is longer

than a particular rock is heavy.” Bendix Autolite Corp.

v. Midwesco Enters., 486 U.S. 888, 897 (1988) (Scalia,

J., concurring). “How are courts to decide?” Allen, 599

U.S. at 35. “Nothing in §2 provides an answer.” Id.

Courts turn to the subjective intent of expert

mapmakers, which is similar to accepting Harvard’s

“trust us” defense. SFFA, 600 U.S. at 217. Indeed, the

Robinson court treated predominance as a credibility

issue, believing Fairfax’s promise that he used race

only to get an “initial sense of where BVAP levels were

strong” but did “not look at the racial data constantly.”

605 F.Supp.3d at 827. He was “adamant and credible.”

6 Complicating matters further is the question-begging move

to treat “non-dilution of minority voting strength” itself as

traditional districting principle, see, e.g., Miss. NAACP, 739

F.Supp.3d at 420, and allow plaintiffs to “prioritize race” over

non-racial principles “as necessary” to draw new districts,

Singleton, 582 F.Supp.3d at 1029.

13

Id. Likewise, race did not predominate in Cooper’s

maps because he “persuaded the Court” that it did

not. Id. Meanwhile, in Mississippi, some legislative

districts survived when a court concluded that

Cooper’s denial of a “racial objective [was] not

credible.” Miss. NAACP, 739 F.Supp.3d at 383.

“We would not offer such deference in any other

context,” SFFA, 600 U.S. at 256 (Thomas, J.,

concurring), because the subjective inquiry is so easily

manipulated. Indeed, it appears the experts have

learned what to say and what not to say. Compare,

e.g., ALBC, 231 F.Supp.3d at 1046 (“[Cooper] came

dangerously

close to

admitting that

race

predominated[.]”) with Singleton, 582 F.Supp.3d at

1006 (crediting “Cooper’s testimony that he worked

hard to give ‘equal weighting’ to all traditional

redistricting criteria”).

To be sure, courts still look for “tentacles,

appendages, bizarre shapes, or any other obvious

irregularities” in a plaintiff’s map. Id. at 1011. But

this “I know it when I see it” approach to racial sorting

is unserious and cannot be the “ultimate standard” for

deciding what is invidious and what is innocent.

Shaw, 509 U.S. at 648; see Vieth, 541 U.S. at 278

(plurality).

All the more, because courts often cannot “see it”

when predominance is staring them in the face. In

Milligan, Duchin admitted that creating majorityblack districts was “nonnegotiable” and that “other

considerations” had “to yield” to that racial “criterion.”

Singleton, 582 F.Supp.3d at 1030. The results of her

racial priorities were plain to see in her maps, which

unquestionably segregated Mobile on racial lines:

14

Duchin E

Milligan v. Allen, No. 2:21-cv-1530 (N.D. Ala.),

DE425-1:76. Despite recognizing that every plaintiff

map split Mobile County to make a new majorityminority district, the court would not admit the

conclusion that race predominated. Why? Because

Duchin said that “race is a consideration that doesn’t

dominate others.” Singleton, 782 F.Supp.3d at 1260.

In sum, how much race to allow in mapmaking is

not judicially manageable. Section 2 “provides no

basis whatever to guide the exercise of judicial

discretion.” Cf. Rucho, 588 U.S. at 716. If “the same

map could be [lawful] or not depending solely on what

the mapmakers said they” did, “there is no reliable

way to determine who wins, or even where the finish

line is.” Allen, 599 U.S. at 35, 37. The Court should

follow Rucho where it leads. Once some race is allowed

(or required), saying “[t]his much is too much” does

not answer “the original unanswerable question” of

how much is too much. Rucho, 588 U.S. at 716.

15

2. The communities-of-interest factor is too

malleable to constrain the use of race.

The Court has repeatedly instructed that the

Gingles 1 “inquiry should take into account …

maintaining communities of interest.” LULAC, 548

U.S. at 433. But there is no “clarity” or “exactness” in

how to do it. Contra Robinson.Br.1. The factor is

paramount for many States, yet courts “struggle with

analyzing and giving [it] meaning.” Robinson, 605

F.Supp.3d at 829. “Communities of interest” is “a term

of art,” yet it is “subjective,” and there is “no universal

definition.” Id. at 776, 829. After decades of litigation,

there is still “no bright line test for determining

whether a district combines communities with

common interests or disparate communities.” Alpha

Phi Alpha, 700 F.Supp.3d at 1259.

That “[c]ommunities of interest are very hard to

measure,” id., is a very big problem because the

Constitution requires that a racial program “operate

in a manner that is ‘sufficiently measurable,’” SFFA,

600 U.S. at 224. Otherwise, courts cannot discern

whether a community is proffered for “neutral”

reasons or as a “pretext for racial discrimination.” Cf.

Shaw, 509 U.S. at 644. This leads to an overbroad use

of race.

In practice, courts pay lip service to a “state’s

districting guidelines,” Robinson, 86 F.4th at 590, but

States in no way control their fate. Federal judges

redo the work of legislatures, holding de facto town

halls where they hear from voters, experts, and

politicians. Then federal judges define the relevant

communities and decide which ones to promote and

how. “That is just a political-gerrymandering claim by

another name.” Banerian, 589 F.Supp.3d at 738.

16

The absence of anything resembling legal rules

was on full display last year in Mississippi, where the

court repeatedly relied on weak lay testimony to force

changes in the State’s maps. On the one hand, the

court credited a local reporter’s testimony that there

is a community along Highway 61 because people use

it “to travel between towns” for “activities.” Miss.

NAACP, 739 F.Supp.3d at 423. Another district had

to be created because, according to one resident, it

would “better respect[] the geographic boundaries of

highways.” Id. at 425. On the other hand, the court

rejected two districts despite testimony about

“transportation corridors” and “all sorts of common …

roads and highways.” Id. at 427, 432. Similarly,

Mississippi was said to have “cracked” a community

that was “similarly concerned” with “economic,

education, healthcare, and [] other issues.” Id. at 42324. But for another alleged community, “share[d]

economic, shopping, work, hospital, and travel

interests” was “not enough.” Id. at 428; see id. at 431.

Or consider the Robinson Appellants’ arguments.

They contend that “the district court’s conclusion that

SB8 fails to satisfy Gingles” should be reversed

because the court ignored “testimony of four fact

witnesses—all lifetime residents of Louisiana who

reside or work in CD6—attesting to the communities

of interest tied together in the new district.”

Robinson.Op.Br.47-48. In other words, the 250-milelong, parish-splitting snake district could satisfy

Gingles (and doom a State that didn’t draw it) based

on lay witness testimony. That is great test for

empowering plaintiffs. Not so much for “filtering out

all but the most meritorious claims of racial

discrimination.” Robinson.Br.1.

17

Those are just problems defining communities of

interest; when it comes to respecting them, §2 also

draws courts into political disputes beyond their ken.

After Alabama proved why it has long respected the

Gulf Coast region by keeping it whole in one district,

the Milligan court announced that splitting some

communities is “inevitable” and does “not always

disrespect” them. 782 F.Supp.3d at 1274.

In short, this test “is standardless.” SFFA, 600

U.S. at 215. If a state-spanning snake district can be

a community, then anything can. And even if courts

could avoid baking race into the test, they could still

easily nitpick a State’s prerogatives or invent new

communities to meet the moment. Either path loosens

the reins on the use of race with a factor that is not

“measurable and concrete enough to permit judicial

review.” Id. at 217. This “is no business of the courts.”

Banerian, 589 F.Supp.3d at 738.

B. There is no objective standard for

racially polarized voting, and its

existence does not prove discrimination.

The second and third preconditions require a

minority group that forms “a politically cohesive unit”

and a majority group that “vote[s] sufficiently as a bloc

usually to defeat the minority’s preferred candidates.”

Gingles, 487 U.S. at 56. Although critical to

distinguish “the mere inability to win” elections,

Gingles provided “no simple doctrinal test for the

existence of legally significant racial bloc voting.” Id.

at 57-58. Nearly forty years later, there remains “no

standard set by courts on the level of cohesion needed

to support the analysis under Gingles.” Miss. NAACP,

739 F.Supp.3d at 441.

18

In theory, “substantial crossover voting” could be a

meaningful limitation on the use of race because it

makes legally significant polarization “unlikely.”

Barlett v. Strickland, 556 U.S. 1, 24 (2009). A

majority-minority district is not required by §2 when

a crossover district could do. See Cooper v. Harris, 581

U.S. 285, 306 (2017).

Yet courts are unrestrained by any clear rule in

how they handle crossover voting. In Alabama, the

2024 election proceeded under a court-ordered district

that was a crossover district by definition: Shomari

Figures won by 9.2 points even though the district was

48.69% BVAP. Singleton, 782 F.Supp.3d at 1145.

Nonetheless, the district court refused to “describe

District 2 … as a crossover district” because there was

“no evidence that Congressman Figures won it with

significant support from White voters.” Id. at 1283

(emphasis added). Another “question of degree” with

no clear answer. SFFA, 600 U.S. at 215.

On the other side of the country, a federal court in

Washington found bloc voting on the ground that

whites voted for Republicans “approximately 70%” of

the time, and Hispanics voted for Democrats at about

the same rate. Soto Palmer v. Hobbs, 686 F.Supp.3d

1213, 1226 (W.D. Wash. 2023). Because a “defeat is a

defeat, regardless of the vote count,” id. the court

adopted a plan to make the majority-Hispanic-citizen

voting-age-population district less Hispanic but

“substantially more Democratic.” Palmer v. Hobbs,

2024 WL 1138939, at *2, *5 (W.D. Wash. Mar. 14,

2024); see also Turtle Mountain Band of Chippewa

Indians v. Howe, No. 3:22-cv-22, 2023 WL 8004576, at

*15 (D.N.D. Nov. 17, 2023) (“defeat rate [of] 59.5% …

alone satisfies the third Gingles precondition”).

19

It may be tempting to think that polarization

reflects

“actual

racial

discrimination,”

Robinson.Br.15, but when States explain that

partisanship, not racism, drives voting patterns, the

outcome is seemingly a tossup. For example, in 2020,

a court rejected §2 claims based on “strong case that

party, not race, is driving election results in

Alabama.” Ala. NAACP v. Alabama, 612 F.Supp.3d

1232, 1293 (M.D. Ala. 2020). But five years later,

another court in Alabama declined to reach “the same

conclusion.” Singleton, 782 F.Supp.3d at 1291. When

States cite a minority candidate’s success in a

majority-white jurisdiction, courts can dismiss the

candidate as a “unicorn,” id. at 1285, an “anomaly,”

Soto Palmer, 686 F.Supp.3d at 1225 n.8., or a Hispanic

with “more in common with [the] Anglo population,”

Elizondo v. SBISD, No. 21-cv-1997, 2025 WL

1222270, at *18 (S.D. Tex. 2025).

Thus, proving two of the three preconditions for

vote dilution does not prove ongoing discrimination.

What bloc voting actually tracks in 2025 is whether a

jurisdiction has more Democrats or Republicans. The

idea that race-based districting is a “prophylactic” to

“remedy and deter” “intentional discrimination,”

Robinson.Br.11, is belied by the test itself.

C. The “totality of circumstances” inquiry

has proven standardless.

The three Gingles preconditions establish that a

minority group could obtain more electoral success

under a different system. But losing an election is not

discrimination; it’s ordinary politics. So, the “totality

of circumstances” inquiry requires courts to discern

whether “the political process is … ‘equally open’ to

minority voters.” Allen, 599 U.S. at 18. Courts

20

consider the so-called Senate Factors and any other

factor that might potentially be relevant. Gingles, 478

U.S. at 36-37.

But even at this stage, discrimination is “not

essential to” the analysis. Id. at 48 n.15; contra

Robinson.Br.21. Once the preconditions are satisfied,

the result is often a foregone conclusion. And when

courts do find “discrimination,” it is not even in the

same category as the “pervasive” disenfranchisement

that motivated enactment of the VRA. Katzenbach,

383 U.S. at 308; cf. Rizzo v. Goode, 423 U.S. 362, 373

(1976) (no relief for three million people based on few

violations). Recent §2 cases demonstrate that the

totalities are no “guardrail” against court-ordered

racial gerrymanders. Robinson.Br.21.

1. These factors are not “evidentiary tool[s]” for

proving actual discrimination. Cf. Ricci v. DeStefano,

557 U.S. 557, 595 (2009) (Scalia, J., concurring);

contra Robinson.Br.21-23. Not only does the test turn

on effects, “not discriminatory intent,” Allen, 599 U.S.

at 25, but district courts have held that intent is “[n]ot

relevant to the [] inquiry” at all, Robinson, 605

F.Supp.3d at 777. Thus, courts will find §2 violations

even when “the record establishes that the Secretary

and [North Dakota] Legislative Assembly were

intensely concerned with complying with the VRA in

passing” a plan. Turtle Mountain, 2023 WL 8004576,

at *16. Even when “[t]he boundaries that were drawn

by [Washington State’s] bipartisan and independent

commission reflected a difficult balance of many

competing factors and could be justified in any

number of rational, nondiscriminatory ways.” Soto

Palmer, 686 F.Supp.3d at 1232.

21

Discrimination is neither the “most important”

factor nor even necessary. Gingles, 478 U.S. at 48

n.15.

In

practice,

the

preconditions

and

proportionality carry the most weight. Although this

Court has cautioned against overreliance on “the force

of the Gingles factors,” which show only the possibility

of dilution, De Grandy, 512 U.S. at 1013, it has also

said that “good reason to think that all the ‘Gingles

preconditions’ are met, … [is] good reason to believe

that §2 requires drawing a majority-minority district,”

Cooper, 581 U.S. at 1470. And while “proportionality

is never dispositive,” Wisc. Legislature v. Wisc.

Elections Comm’n, 595 U.S. 398, 405 (2022) (per

curiam), it is “relevant,” LULAC, 548 U.S. at 426. If a

court finds the preconditions satisfied, the State will

prevail in only “the very unusual case,” Wright v.

Sumter Cnty. Bd. of Elections & Registration, 979 F.3d

1282, 1304 (11th Cir. 2020),7 and proportionality

“generally explains the results” from there.8

That is not because the Gingles preconditions and

disproportionality are sure indicators of “substantial

racial discrimination.” Allen, 599 U.S. at 25. The fact

that “[v]oter turnout and registration rates now

approach parity” in States recently hit with §2

injunctions should put that notion to rest. Shelby

7 See also Uno v. City of Holyoke, 72 F.3d 973, 983 (1st Cir.

1995); NAACP v. City of Niagara Falls, 65 F.3d 1002, 1019 n.21

(2d Cir. 1995); Jenkins v. Red Clay Consol. Sch. Dist. Bd. of

Educ., 4 F.3d 1103, 1116 n.6 (3d Cir. 1993); Clark v. Calhoun

Cnty., 21 F.3d 92, 97 (5th Cir. 1994); Sanchez v. Colorado, 97

F.3d 1303, 1322 (10th Cir. 1996).

8 Allen, 599 U.S. at 72 (Thomas, J., dissenting) (citing E.

Katz, et al., Documenting Discrimination in Voting: Judicial

Findings Under Section 2 of the Voting Rights Act Since 1982, 39

U. Mich. J. L. Reform 643, 730-32 (2006)).

22

County, 570 U.S. at 540. The reason plaintiffs usually

succeed on the totalities is that the “test is not

arduous.” Anne Harding v. Cnty. of Dallas, 948 F.3d

302, 315 (5th Cir. 2020) (Ho, J., concurring).

And why would it be? From its inception, the

“linchpin” of Gingles has been “electoral success,” not

actual discrimination. 478 U.S. at 93 (O’Connor, J.,

concurring in judgment). Minority electoral success

and polarized voting, i.e., Gingles 3, “predominate the

totality-of-the-circumstances analysis.” Mo. NAACP

v. Ferguson-Florissant Sch. Dist., 894 F.3d 924, 938

(8th Cir. 2018); see Singleton, 782 F.Supp.3d at 1289.

Plaintiffs often focus on past discrimination, which

is not enough to show unequal opportunity in

elections today. That much is clear. See Allen, 599

U.S. at 25-26; Brnovich v. Democratic Nat’l Comm.,

594 U.S. 647, 671 (2021); see also Shelby County, 570

U.S. at 550 (“[C]urrent burdens must be justified by

current needs.” (cleaned up)). But equally clear is the

ease with which courts condemn a State for its

original sin. Courts tie the past to the present by

papering over whether past discrimination actually

caused current disparities, Alpha Phi Alpha, 700

F.Supp.3d at 1279-81, and by disclaiming any need to

show that “socioeconomic disparities” are “link[ed]” to

voter participation, id. at 1281. Ties to the past are

“near-obvious,” even in the face of “racial parity in

rates of voter registration and turnout,” Singleton,

782 F.Supp.3d at 1300-02, and recent judicial findings

that the State proved equal opportunity by

“overwhelming evidence,” ALBC, 989 F.Supp.2d at

1287 (W. Pryor, J.). Even when “there is no evidence

that any history of official discrimination … touched

the right of” a minority group “to register, to vote, or

otherwise to participate in the democratic process,”

23

Elizondo, 2025 WL 1222270, at *26-27, courts find

“less opportunity” for that group “to participate in the

political process,” 52 U.S.C. §10301(b). It is doubtful

that a reminder that “recent events are more

probative than distant history” (Stephanopoulos.Br.

33) would finally clear the fog.

The Robinson Appellants (at 16) say that “the

totality-of-circumstances test” is “sensitive to

‘changing conditions.’” The problem is that the test

becomes ever more “sensitive” as conditions improve.

“[D]emands for outcomes have followed the cutting

away of obstacles to full participation,” Clements, 999

F.2d at 837, “effectively assur[ing] that race will

always be relevant,” SFFA, 600 U.S. at 224.

In Washington, for example, the court focused not

on current barriers to voting, but rather “barriers that

make it harder for Latino voters to be able to believe

that their vote counts.” Soto Palmer, 686 F.Supp.3d.

at 1228 (emphasis added). Among these barriers to

belief was the “problem” that a “significant percentage

of the community … is ineligible to vote because of

their immigration status,” id. at 1228—i.e., their votes

did not count. The court also found that holding

“senate election[s] in a non-presidential … election

year” “hinder[ed] Latino voters’ ability to fully

participate in the electoral process,” id. at 1228, even

though “the concept of a voting system that is ‘equally

open’ and that furnishes an equal ‘opportunity’ to cast

a ballot must tolerate the ‘usual burdens of voting,’”

Brnovich, 594 U.S. at 669.

Georgia recently expanded early voting, allows noexcuse absentee voting, and has automatic voter

registration. Alpha Phi Alpha, 700 F.Supp.3d at 127475. Of eligible Georgians, 98% are registered to vote;

24

both major party nominees for the last U.S. Senate

race were black; Georgia’s congressional delegation

includes five black Democrats despite having only two

majority-black districts; and black Georgians enjoy

proportional representation in Congress. See id. at

1190-91, 1283, 1288, 1360, 1365, 1372. The district

court even commended the State for its “great

strides,” but found Georgia had not reached “equal

openness and equal opportunity.” Id. at 1290. Why?

An increasingly sensitive inquiry that transmuted

voting laws “determined … to not be illegal under

federal law” into recent “official discrimination in the

state.” Id. at 1268, 1272. The court also relied on

Georgia’s experience during the 1990 redistricting

cycle when DOJ twice denied Georgia preclearance for

its congressional plans under §5. DOJ’s objection

letters were treated as evidence of “Georgia’s history

of discrimination against Black voters,” id. at 1270,

even though DOJ was misusing §5 to demand a

flagrantly gerrymandered “‘max-black’ plan.” Abrams

v. Johnson, 521 U.S. 74, 80 (1997). A refusal to enact

an unconstitutional “max-black” plan in the 1990s

justified imposing a max-black plan thirty years later.

In Louisiana, the totalities test proved even more

“sensitive” still. Robinson.Br.16. After surveying some

of the scant evidence of recent official discrimination,

the court found that VRA violations are not “less

prevalent” than in the past, just “less visible now with

the elimination of federal oversight.” Nairne v.

Ardoin, 715 F.Supp.3d 808, 870 (M.D. La. 2024). In

addition to invisible VRA violations, the court cited

“the subliminal message of the Sheriff’s Office being

housed on the same floor as [a] Registrar of Voter’s

Office,” as evidence of vote dilution. Id. at 874 n.461.

A dilution test triggered by even the subliminal is

25

incapable of “filtering out all but the most meritorious

claims of racial discrimination.” Robinson.Br.1.

2. Once again, the problem is not poor application

of the test; the problem is that the inquiry is “as empty

as the resigned ‘I know it when I see it’ approach to

obscenity.” Issacharoff, supra at 1845. In 2025, it

offers no guidance in an area where “courts and

legislatures alike” desperately need “workable

standards.” Barlett, 566 U.S. at 17 (plurality); see

Holder v. Hall, 512 U.S. 874, 881 (1994) (plurality).

There is no clear guidance on how courts should

account for socioeconomic disparities or past

discrimination, perhaps because there is no nexus

between those factors and whether a district creates

unequal opportunity. Does a voter who can satisfy the

Gingles preconditions but lives in a State with greater

parity in car ownership have any more opportunity to

elect than one who lives in a State with wider gaps?

If discrimination causes disparities in turnout

rates and the like, then the remedy should be focused

on turnout, not on using race to “‘rig[]’ elections.”

United States v. Dallas Cnty. Comm’n, 850 F.2d 1433,

1433-44 (11th Cir. 1988) (Hill, J., concurring).

II. Race-based redistricting has no end point.

Because race-based redistricting under §2 turns on

“qualitative standards” that “are difficult to measure,”

there is no “end point” to the statute’s racial

preferences. SFFA, 600 U.S. at 224 (cleaned up). But

an end point is “critical” because all racial programs

are inherently “dangerous.” Id. at 212. Section 2’s

effects test for maps has applied for two generations

and five redistricting cycles. If race-based districting

had any “efficacy,” it should “no longer be necessary.”

Grutter v. Bollinger, 539 U.S. 306, 343 (2003).

26

A. Because “equal treatment of all racial and

ethnic groups” is the “norm,” racial classifications

must be “temporary.” City of Richmond v. J.A. Croson

Co., 488 U.S. 469, 510 (1989) (plurality). Even in the

wake of Brown, desegregation injunctions could not

“operate in perpetuity.” Bd. of Ed. of Oklahoma City

Pub. Sch. v. Dowell, 498 U.S. 237, 248 (1991). They

had to be “temporary” because the “ultimate objective”

was to “relinquish[] … judicial control,” Freeman, 503

U.S. at 489, not to oversee “year-by-year adjustments”

to keep schools “demographically stable,” Swann v.

Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1, 31-32

(1971). If race-based remedies for intentional

segregation must have an endpoint, so must racebased remedies for unintentional dilution.

Yet unlike an order to desegregate public schools,

majority-minority districts will never render votedilution claims obsolete. They do nothing to reduce

racially polarized voting; if anything, they yield the

opposite effect. See Shaw, 509 U.S. at 648; cf. Rucho,

588 U.S. at 751 (Kagan, J., dissenting).

To be sure, there are a finite number of majorityminority districts States can draw, but that is not

much of a solution. Changes in demographics and

voting patterns require States to “reassess” after

every census. Robinson.Br.32. Maybe a racial group

becomes numerous and compact enough to form a

majority in a new district, maybe existing boundaries

must change, or maybe the districts should remain

the same because of their racial performance. To

answer these questions, legislators and their

mapdrawers are forced to “consum[e] … racial data”

every decade, Alexander, 602 U.S. at 37, to see if §2

requires picking election “winners and losers based on

the color of their skin,” SFFA, 600 U.S. at 225. That

27

process “assures that race will always be relevant”

and “that the ultimate goal of eliminating race as a

criterion will never be achieved.” Id. at 181 (cleaned

up). The threat of §2 liability precludes a world where

“race no longer matters,” Shaw, 509 U.S. at 657, and

the slim chance that a State could survive the ten-year

“periodic review” without considering race does not

satisfy the Constitution’s “durational requirement.”

SFFA, 600 U.S. at 225. Contra Robinson.Br.31.

Section 2’s use of race in redistricting also has no

discernible end point because it does not pursue

discrete and measurable goals. Supra §I. For school

desegregation, the constitutional demand and

remedial goal was obvious: treat students equally. Not

so for redistricting. Congress has not “amassed a

sizable record” that a little more race-based

districting will produce greater equality in political

participation. Cf. Nw. Austin, 557 U.S. at 205. To the

contrary, empirical evidence suggests that electing a

minority candidate has no relationship to minority

voter turnout.9

Instead of proof that this remedy works, which

might point toward an expiration date, what’s on offer

is the nebulous goal that race-based districting must

continue until a State has “outrun the effects of its

past.” Singleton, 782 F.Supp.3d at 1323. Of course,

that logic will force race-based districting to “extend

See, e.g., C. Gay, The Effect of Black Congressional

Representation on Political Participation, 95 Am. Pol. Sci. Rev.

589, 599 (2001) (“The optimism of some who champion minority

representation (and, by extension, the districting mechanism

that ensures it) as a way to increase black voter participation

may be misplaced.”); L. Drutman, Elections, Political Parties,

and Multiracial, Multiethnic Democracy: How the United States

Gets It Wrong, 96 N.Y.U. L. Rev. 985, 1009 (2021).

9

28

indefinitely into the future,” Allen, 599 U.S. at 45

(Kavanaugh, J., concurring), because “[e]quality is an

ongoing project in a society where racial inequality

persists,” SFFA, 600 U.S. at 370 (Sotomayor, J.,

dissenting). No amount of progress can cure an injury

that is “ageless in its reach into the past.” Cf. Regents

of Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978)

(opinion of Powell, J.). There will always be “experts

[to] tell us [more] is required to level the playing field

and march forward together” to “achieve true

equality.” SFFA, 600 U.S. at 408 (Jackson, J.,

dissenting). Even in the face of “substantial progress,”

a court can declare “we are certainly not yet there.”

Singleton, 782 F.Supp.3d at 1322; cf. SFFA,

Oral.Arg.Tr.83 (Oct. 31, 2022) (“Are we there yet?

No.”). The project will not be over “any time soon.”

SFFA, 600 U.S. at 225.

B. Nor will race-based districting soon achieve the

VRA’s aim to “foster our transformation to a society

that is no longer fixated on race.” LULAC, 548 U.S. at

434. “The reality is that districting inevitably has and

is

intended

to

have

substantial

political

consequences.” Gaffney v. Cummings, 412 U.S. 735,

753 (1973). That creates perennial “incentives for

those who support or oppose certain policies to cast

the debate in terms of racial advantage or

disadvantage.” Schuette v. BAMN, 572 U.S. 291, 309

(2014) (plurality).

The concern is not hypothetical. One of the

plaintiffs in Alabama’s case, a state legislator, accused

his Republican colleagues of trying to “make sure an

African-American would not win.” Singleton, 782

F.Supp.3d at 1348. The court credited that remark as

evidence of racial intent. Id. at 1347-48. In another

case, evidence that a Democratic candidate “targeted

29

Black voters” with racial appeals was counted as

evidence that the Republican Legislature needed to

draw another Democratic district. Ala. NAACP, 2025

WL 2451166, at *82.

Similarly, during Alabama’s 2023 special session,

Dr. Joe Reed—one of the most influential Alabama

Democrats of the past forty years—pushed his

preferred map by arguing, “our plan is the blackest.”10

This form of racial politicking is nothing new. Nor is

its success as a political strategy. Indeed, “Alabama’s

2010 plans” for state legislative districts “were

modeled” on “max-black district maps that it inherited

from Reed[]” in the 1990s. ALBC v. Alabama, 575 U.S.

254, 304 (2015) (Thomas, J., dissenting). Dr. Reed “set

out to maximize … the number of black-majority

districts,” and the State “entered into a consent decree

agreeing to the use of [his] Plan.” Kelley v. Bennett, 96

F.Supp.2d 1301, 1309 (M.D. Ala. 2000). Decades on,

§2 does not reduce the role of race in politics; it

encourages at least one political party to remain

“fixated on race.” LULAC, 548 U.S. at 434.

III. Race-based redistricting relies on stereotypes and penalizes voters based on race.

Because drawing districts “does not, without more,

diminish” anyone’s vote, what’s at stake is “the

political power of a group.” Shaw, 509 U.S. at 682

(Souter, J., dissenting). Grievances to vindicate

“group political interests” are already constitutionally

suspect, Gill v. Whitford, 585 U.S. 48, 72 (2018), and

§2’s use of “plainly overbroad” racial categories is even

worse. SFFA, 600 U.S. at 216. Despite “countless

See The Alabama Channel, Alabama Joint Permanent

Legislative Committee on Reapportionment (July 17, 2023),

www.youtube.com/watch?v=AGM4k9nRgXk&t=5997s (1:40:00).

10

30

differences” within racial groups, id. at 292 (Gorsuch,

J., concurring), vote-dilution law permits a single

voter to assert harm to a whole racial group, forcing

States to move thousands, even millions, of voters.

Nowhere else does the law tolerate litigation “on

behalf of … all other black citizens” as a matter of

course. Burton v. Hobbie, 543 F.Supp. 235, 235 (M.D.

Ala. 1982); Wesch v. Hunt, 785 F.Supp. 1491, 1493

(S.D. Ala. 1992).

A. Section 2’s application to redistricting involves

racial stereotypes at every step. First, when assessing

illustrative plans, courts endorse testimony about

racial groups that they would be loath to indulge in

any other context. The Robinson court credited

testimony that communities must “be considered

through the lens of Black experiences,” rather than

shared “cultural concerns.” 605 F.3d at 790. Another

court credited an expert who relied on “public-schooldistrict athletics … because he did not think black

children would be attending private schools.” Miss.

NAACP, 739 F.Supp.3d at 426. Still another credited

an expert who opined it was important to combine

rural black voters from hundreds of miles away with

what he termed “Black Mobile.” Singleton v. Allen,

690 F.Supp.3d 1226, 1305 (N.D. Ala. Sept. 5, 2023).

The polarization inquiry fares even worse. It is a

vice, not a virtue, that §2 demands proof of racial

voting patterns, i.e., “the very stereotype the law

condemns.” Powers v. Ohio, 499 U.S. 400, 410 (1991).

Even if “statistical support can be conjured up,” J.E.B.

v. Alabama, 511 U.S. 127, 139 n.11 (1994),

governments can never assume that “race in itself

says something about who you are,” SFFA, 600 U.S.

at 220 (cleaned up). Yet that assumption underpins

race-based districting, which its supporters knew

31

decades ago. Dissenting in Shaw, Justice Stevens

argued that Gingles “depend[s] on proving that what

the Court today brands as ‘impermissible racial

stereotypes’ are true.” 509 U.S. at 678 n.3 (citation

omitted). And it remains a “paradox” that the VRA

“require[s]”

racial

stereotypes

“that

the

Constitution … prevents reliance on.” Id.

One solution is a double standard, permitting

racial tropes if they “benefit th[e] group” being

stereotyped. Id. at 678 (Stevens, J., dissenting); see

Crum.Br.2; id. at 17 (endorsing role for the “belief that

racial groups ‘think alike, share the same political

interests, and will prefer the same candidates at the

polls’”). But the law cannot endorse that “offensive

and demeaning” assumption. Miller, 515 U.S. at 91112. Any use of stereotypes is “shortsighted,” inhibits

“progress,” and “causes hurt and injury.” Id. at 927.

Any racial program is “infirm” if it assumes that

minorities “consistently[] express some characteristic

minority viewpoint.” SFFA, 600 U.S. at 219. The rule

should not be different for electoral politics.

B. Race-based districting also uses race as a

negative. Like college admissions, districting is zerosum: To increase the voting strength of a racial group,

vote-dilution remedies must “discriminate against

those racial groups that were not the beneficiaries of

the race-based preference,” SFFA, 600 U.S. at 212. It

is not only offensive but a contradiction in terms to say

that “the right to vote free of racial discrimination”

permits the use of race to “advance” and “benefit[]”

one race of voters. Crum.Br.4, 17; cf. Parents Involved

v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 742-43 (2007)

(plurality) (rejecting “benign racial classifications”);

Adarand, 515 U.S. at 225-30 (same); SFFA, 600 U.S.

at 257 (Thomas, J., concurring). Yet under §2, it is not

32

hard for courts to rationalize benefits for some racial

groups and penalties for others.

In Alabama, the district court recognized that

“[f]ewer splits are generally better” when discussing a

majority-black community of interest, Singleton, 582

F.Supp.3d. at 1008, but held that splits are just

“inevitable” for a majority-white community,

Singleton, 782 F.Supp.3d at 1275. Only the court’s

antecedent view that white voters cannot suffer a

“racially discriminatory harm” could justify the

differential treatment. Id. at 1276. “How else but

‘negative’ can race be described,” SFFA, 600 U.S. at

219, when a majority-white community is divided, but

not “cracked,” because the latter term applies only to

“the dispersal of blacks”? Singleton, 782 F.Supp.3d at

1276; cf. Ames v. Ohio Dep’t Youth Servs., 145 S.Ct.

1540, 1546-47 (2025).

IV. The Fifteenth Amendment does not save

race-based

redistricting

under

§2’s

indeterminate dilution test.

The Fifteenth Amendment allows Congress to

enforce the prohibition on race-based denials or

abridgements of the right to vote. Congress passed §2

pursuant to that authority. The Robinson Appellants

argue (at 12) that States may classify their citizens

based on race whenever done pursuant to enforcement

legislation, as if an equal-opportunity-in-admissions

statute would have saved Harvard’s affirmative

action program. But §2 as applied to redistricting is

not appropriate legislation to enforce the Fifteenth

Amendment because it violates the Fourteenth

Amendment.

Enforcement legislation must be consistent with

“the letter and spirit of the constitution,” Katzenbach,

33

383 U.S. at 326, even if the legislation is “otherwise

proper,” Miller, 515 U.S. at 927. And the letter and

spirit demand that “all racial classifications, imposed

by whatever federal, state, or local governmental

actor” are “narrowly tailored measures that further

compelling government interests.” Adarand, 515 U.S.

at 227. When a State complies with enforcement

legislation like bans on literacy tests and polls taxes,

or when §2 limits laws regulating the time, place, or

manner of voting, no one is treated differently based

on race. But when §2 demands race-based districts,

that harm ensues.

Thus, unlike ordinary enforcement legislation or

many other applications of §2, the statute’s

authorization of race-based redistricting is not an

appropriate means to enforce the Fifteenth

Amendment unless it survives strict scrutiny. See

Oregon v. Mitchell, 400 U.S. 112, 128 (1970) (opinion

of Black, J.) (“Congress has no power under the

enforcement sections to undercut the [Thirteenth,

Fourteenth, and Fifteenth] amendments’ guarantees

of

personal

equality

and

freedom

from

discrimination.”); cf. Miss. Univ. for Women v. Hogan,

458 U.S. 718, 732-33 (1982); Ricci, 557 U.S. at 594

(Scalia, J., concurring). Contra Robinson.Br.33

(suggesting this case threatens other “permanent,”

“prophylactic” legislation). The Court cannot presume

that because §2 is enforcement legislation, its demand

for race-based districts is narrowly tailored to further

a compelling interest. Cf. Miller, 515 U.S. at 926

(reading of §5 raised “serious constitutional

concerns”); id. at 922 (no “blind judicial deference”);

SFFA, 600 U.S. at 217-18 & n.5. Congress may have

thought §2 was a “rational means to effectuate the

constitutional prohibition of racial discrimination in

34

voting,” Katzenbach, 383 U.S. at 324, but for racebased action, only “the most exact connection between

justification and classification” can suffice, Adarand,

515 U.S. at 236. Otherwise, Congress could “enforce”

the Fifteenth Amendment by denying the franchise

based on race.

To be sure, the Court rejected “the constitutional

argument presented” in Allen that “Congress in 1982

could [not] constitutionally authorize race-based

redistricting under § 2.” 599 U.S. at 45 (Kavanaugh,

J., concurring). But the Court never considered

whether §2’s continued use of race “compl[ies] with

strict scrutiny,” “use[s] race as a stereotype or

negative,” or will ever “end.” SFFA, 600 U.S. at 213.

“Alabama did not raise [those] argument[s].” Allen,

599 U.S. at 45 (Kavanaugh, J., concurring). Since

Allen, the Court has confirmed that the “consideration

of race to achieve racial equality” at Harvard was

unconstitutional. SFFA, 600 U.S. at 361 n.34

(Sotomayor,

J.,

dissenting).

And

Harvard’s

“consideration of race” was “[j]ust like” the

“consideration of race” needed for “drawing district

lines that comply with the Voting Rights Act.” Id.

Both are forms of racial discrimination, and “all of it”

must be eliminated. Id. at 206 (majority).

CONCLUSION

The Court should affirm.

35

ADDITIONAL COUNSEL

STEPHEN J. COX

Attorney General

State of Alaska

JAMES UTHMEIER

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

RAÚL R. LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW WRIGLEY

Attorney General

State of North Dakota

GENTNER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

JONATHAN SKRMETTI

Attorney General

State of Tennessee

KRIS W. KOBACH

Attorney General

State of Kansas

LYNN FITCH

Attorney General

State of Mississippi

JOHN B. MCCUSKEY

Attorney General

State of West Virginia